From illegal red light cameras to property seizures, Texas court made abuse of power easier than ever

When the Texas Land Commissioner’s office wrongly seized some ranchers’ property, Commissioner George P. Bush had a novel argument for why he shouldn’t have to give it back.

Bush was entitled to misinterpret the law about the property unchallenged by anyone, he argued, for the same reason that the chancellor of the University of Texas could misinterpret the law and refuse to turn over records of corruption to a member of his board.

Fortunately for landowners across the state, a Houston appeals court rejected that argument last month, but not because it was wrong in principle.

Bush had discovered a sort of all-purpose, get-out-of-jail-free card that a dozen other Texas officials accused of misusing their power have found to be handy over this past year.

Before the case Hall v. McRaven was decided in January 2017, the Supreme Court of Texas had long upheld the principle that “a public officer has no discretion or authority to misinterpret the law.” But in Hall, the court ruled that the UT chancellor was “unconstrained” by any law in existence, except for a law under which he was delegated to interpret other laws.

Taken literally, that principle could nearly cancel the rule of law as it applies to government officials, who are now free in theory to “interpret” away any inconvenient legal requirements. After all, what’s a law if you don’t have to follow it?

Hall has popped up in more than a dozen Texas cases over the last year, with officials arguing that it grants them impunity, and courts sometimes citing it in dismissing lawsuits meant to hold officials accountable.

In those five cases, and several more over the last year, officials accused of wrongdoing have sought or found refuge in Hall. In some cases, judges are refusing to give such a far-reaching interpretation to the Hall precedent, in light of its practical consequences.

The state Supreme Court itself has gone the other direction, citing Hall in an opinion that conferred vast authority on state alcohol regulators, and produced a regulatory scheme that lower courts immediately recognized as “absurd” and unworkable. (More on this in an article to be published shortly.)

The Hall ruling, which came out of the admissions scandal at the University of Texas, found that an official couldn’t be forced to obey the law so long as the official had been duly authorized to interpret the law in the first place. In that case, Chancellor Bill McRaven “interpreted” a federal education law to mean he didn’t have to share records with a board member, despite the absence of any clear text or case law to support that position. In its decision, the Supreme Court assumed that McRaven had misinterpreted the law, but found that obeying such “collateral” law was effectively optional.

Bush seized on that logic. The law, he argued, granted him direct authority to “execute and perform all acts and other things relating to public real property of the state or rights of individuals in public real property” and to “identify real property owned or controlled by the state.”

The rest of state law, then, must be “collateral,” and therefore nothing anybody could challenge. Those challenges, incidentally, are known as ultra vires claims, from the Latin for “beyond authority.”

“Like the chancellor in McRaven, Commissioner Bush acted within his authority to determine the method for calculating the boundary line, regardless of whether his interpretation… was ‘right or wrong,’” his lawyers argued.

So even if he made a mistake in deciding that Lone Oak’s land actually belonged to the state, the ranch owners had zero right to sue him and get their property back, Bush argued, simply because he had “complied with the directive to identify such lands and thus acted within his authority.”

The court observed that if it accepted Bush’s argument, that would be the end of a half-century old procedure that landowners use to fight government property seizures.

“There is nothing in the text of McRaven to suggest that the opinion was intended to overrule over 50 years of case law,” the court reasoned, in refusing to extend the McRaven principle to an illogical end.

“[T]he Commissioner does not have a… right to be wrong,” the court ruled.

THE RIGHT TO BE WRONG

The Hall v. McRaven decision has popped up in more than a dozen cases where the issue is whether the government has to obey the law, whether it has the right to be wrong.

When a body camera manufacturer sued the City of Austin alleging that the bidding process for a contract had been rigged, citing shenanigans like score-changing and a “midnight signing” of the deal, the lawsuit was dismissed. The appeals court cited Hall for the principle that when “an official’s duty is to interpret collateral law, a misinterpretation is not overstepping such authority; it is a compliant action even if ultimately erroneous…”

Was that just sour grapes? Esteemed attorney Bill Aleshire told a newspaper that the process appeared to be flawed, and that Austin officials should worry about getting a reputation that their process is “rigged, corrupt, or just arbitrary.”

That same appeals court cited that same line about compliant erroneousness in siding with a state regulator sued by an assisted living facility operator for refusing to certify that some of its rooms met minimum floor space requirements. Rather than calculating square footage the standard way, the government agency had decided that only the main rectangular space in a room counted, excluding nooks, crannies, entryways, and other such spaces from the square footage, and making the decision after the rooms had already been built.

THE SEAFOOD BUSINESS

In a case that’s before the state Supreme Court now, a local navigation district in Galveston Bay decided it has the authority to lease oyster beds in state-owned waters to a company owned by friends of some district commissioners.

“Navigation districts cannot go into the seafood business,” the State of Texas argues. For one thing, “Authority to regulate oysters is granted only to the Texas Parks and Wildlife Department.”

“As such, the Parks & Wildlife Code cannot form the basis of a valid ultra vires claim, as set forth in Hall,” the district argues. That would mean the only law you can make the district obey is the law about the district itself.

A court of appeals sided with the State of Texas, finding nothing in the Water Code that gave the navigation district the right to lease oyster farms.

In its brief to the Supreme Court, however, the State struggles to make any sense of this idea of “collateral” law, to work out the distinction between laws you have to follow and laws that you don’t, citing the high court’s contradictory precedents.

RAISING PROPERTY TAXES

In 2015, some 20 school districts around the state tried to avoid the property tax relief that Gov. Greg Abbott signed into law, which fixed homestead exemptions for several years.

Kilgore Independent School District, for example, tried to repeal its homestead exemption, effectively raising property taxes, just two weeks after the bill was signed. A district judge ruled that Kilgore had illegally collected some $4 million in property taxes, a decision that Kilgore appealed last week.

While the various litigation over the issue hasn’t been resolved yet, it’s clear that the Hall ruling makes it more difficult for taxpayers to challenge illegal taxes. Last year, an appeals court decided that Kilgore was not immune to a lawsuit by taxpayers, but in a troubling passage, it cited Hall in deciding that the superintendent and the board had not exceeded their legal authority in approving an illegal tax increase.

The Hall decision, the court wrote, stood for the principle that “[n]ot every mistake or misinterpretation of the law amounts to an ultra vires act.”

“When an official is granted discretion to interpret the law, an act is not ultra vires merely because it is erroneous.”

It’s not wrong, in other words, just because it’s wrong. It’s the infinite elasticity of that self-cancelling principle that explains why it’s showing up in so many unrelated cases. It works whenever you want to argue, “Hey, you can’t really expect me to follow all the laws.”

When Hall v. McRaven was decided, one critic of the decision predicted exactly this sort of abuse:

“Say an appraisal district values your modest house at a half-million dollars in violation of whatever caps and restrictions are on the books in your jurisdiction. You sue, claiming the appraiser had no authority to do that, citing laws the appraiser is plainly disregarding.”

Well, under this new principle, so long as the chief appraiser delegated the authority to “interpret” the laws to another appraiser, you have no recourse.

That’s just what’s happening.

RUNNING RED LIGHTS

In Texas, it’s against the law for a city to install a red-light camera and issue tickets unless it first conducts a traffic engineering study.

But if you think the courts enforce that law, think again.

Three times now, Texas appeals courts have sided with municipalities that illegally installed red light cameras against people who challenged their tickets in court. Two of those cases, however, have now reached the state Supreme Court, which has agreed to consider one and was just notified of the other.

Once again, Hall v. McRaven figures in the mix.

In one case, an appeals court cited it in shrugging off the need for the city to comply with the law. In the other, it’s actually the plaintiffs citing it.

Sec. 1001.407. CONSTRUCTION OF CERTAIN PUBLIC WORKS. The state or a political subdivision of the state may not construct a public work involving engineering in which the public health, welfare, or safety is involved, unless:

(1) the engineering plans, specifications, and estimates have been prepared by an engineer…

As far as the law goes, that’s pretty straightforward. Before issuing tickets, a city has got to conduct a traffic study by a bonafide engineer, not just some staffer. The complication comes in when you try to force the city to actually obey the law.

In a case called Willis v. Garcia, which the state Supreme Court will consider later this year, an appeals court in Beaumont cited Hall in making a distinction between unauthorized illegal acts by officials, which you can sue over, and cases where an official is merely “not fully complying with regulatory requirements,” which you can’t.

The court decided it didn’t even have to address whether the City of Willis had “completed a traffic engineering study as required by the statute because we conclude that the failure to strictly comply with that provision of the statute” wouldn’t even matter, as it “would be nothing more than allegations that the officials have failed to ‘fully comply’ with regulatory requirements…”

In another case, called Hunt v. Diboll, which the Supreme Court is considering whether to take up, it’s the plaintiffs who are citing Hall. Even with all the procedural obstacles Texas puts in the way of anybody suing to hold government accountable, there are a few paths to success. The Hall decision, for example, may have been a serious blow to the force of “collateral” laws, but at least it stated that officials are bound by the direct “requirements” of their “enabling law…. the authority-granting law itself.”

If the law authorizing cities to install red-light cameras includes a few requirements, such as traffic studies, the plaintiffs argue, then you’ve at least got to make the city do that much. Don’t you?

In Texas, where the balance between accountability and impunity is tilted all the way in one direction, that’s an open question.

Jon Cassidy is a reporter for The Texas Monitor and a contributing editor for The American Spectator. He has been an investigative reporter for Watchdog.org and an editor and reporter for The Orange County Register. His work has also appeared in The Wall Street Journal, City Journal, The Federalist, Fox News, Chronicles, Reason, and other publications. He was a 2014 Robert Novak Journalism Fellow, and is a graduate of the University of Southern California. He and his wife Michelle live just outside Houston with their two children.

33 COMMENTS

Even though we have been in power for many years, Texas Republicans have no taste for small government. Coercion is the primary mechanism for governing, and libertarian principles are ignored. I CERTAINLY did not vote for George P. Bush in the Primary. Supporting this clown is akin to flogging ourselves…..